Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief

by appealattorneylaw

Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.

(1) United States v. Fries, No. 11-15724.  If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues.  Often, the courts accept Anders briefs without question.  However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and

(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason:  at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”).  After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense.  It’s not very often that the Government commits such an error.  As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute.  According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr.  Diaz’s grow-house operations.  Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time.  Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
  • First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal.  In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013).  However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
  • Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel.  Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
  • Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants.  The Court quickly disagreed.  In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
  • Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial.  In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).